Category Archives: Mark L. Movsesian

Movsesian Review of “Heirs to Forgotten Kingdoms”

The Library of Law and Liberty has posted my review of Gerard Russell’s Heirs to Forgotten Kingdoms, a new book on Christians and other religious minorities in the Middle East. Russell describes the history and present circumstances of these groups, including their struggle to emigrate and find new homes in places like the United States:

Will these communities survive in their new environments? Russell hopes so. He describes some touching examples of endurance, like the time he heard a clerk speaking Aramaic in a supermarket in suburban Detroit. But he wonders how long it can last. For all its great achievements, America has a way of destroying traditional identities, and it’s difficult to maintain one’s distinctive customs for very long. He wonders whether escape to the West isn’t “a back-loaded contract for immigrant communities—get the benefit of prosperity now, pay the loss of identity later.” Still, it beats annihilation, which is what threatens these groups at home.

You can read the whole review here.

CLR Participates in International Moot Court in Venice

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Posing a Question in Venice

As regular readers know, I’ve spent this week at a terrific new program at the Fondazione Marcianum in Venice, an international moot court competition on law and religion. The Marcianum gathered law student teams from the US and Europe to argue a hypothetical case before two courts, the European Court of Human Rights and the US Supreme Court. Along with Notre Dame’s Bill Kelley and Judge (and CLR Board member) Richard Sullivan of the SDNY, I served as a judge on the American court. That’s us, in action, above. Mark Hill of Cardiff University, Renata Uitz of Central European University, and Louis-Leon Christians of Catholic University of Louvain made up the European side. Both courts were ably assisted by PhD students from the Marcianum, who served as our shadow clerks, helping us with research and the development of our ideas.

The case was a very topical one. A private, family owned firm had dismissed an employee for making a negative comment about creationism, in violation of the business’s code of conduct, which prohibited anti-religious statements. In the European version, the domestic courts ruled in favor of the firm, and the employee brought a claim under Article 9 of the European Convention on Human Rights. In the American version, the employee sued for employment discrimination, arguing that he had been dismissed on account of his religious views; the employer maintained that, even if Title VII applied, RFRA allowed for an accommodation in these circumstances.

Lots of issues here, and the student teams did a remarkable job addressing them. Special credit goes to the two Italian teams, from the Universities of Milan and Macerata,who had to learn an entirely new legal system and argue in a foreign language. In the end, our panel gave the 500 euro award for best team to the entrants from Emory Law School. They did their school, and especially Emory’s Center for the Study of Law and Religion, proud. On the European side, the award went to the team from Inner Temple.

This was an absolutely wonderful event. It was a lot of work for the students and the judges (not that I’m complaining!), but extremely valuable and tremendous fun. I imagine the most valuable aspect, for the students, was learning how another legal system would handle these issues. The Americans were struck by the argument style in the European Court — 30 minutes of presentation followed by five minutes to answer questions from the bench — and the Europeans were surprised at the more assertive, freewheeling style of argument in an American court. But they adjusted very well.

I hope the Marcianum continues this event. Law and religion has gone global, and comparative law is an increasingly important component of a legal education on both sides of the Atlantic. I’ll write more when I return to NY, but, for now, a very warm thank you to the Marcianum for hosting this event, and especially to Professor Andrea Pin, who invited me and had a major role in the entire enterprise. And thanks to the readers of our blog who stopped by to say hello!

Movsesian at International Law & Religion Moot Court in Venice Next Week

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Home of the Marcianum in Venice

Next week, I’ll be in Venice for a new, three-day international law-and-religion moot court competition. Hosted by a research institute, the Fondazione Studium Generale Marcianum, the competition brings together law students from the US and Europe to argue a case on religious accommodation. I’ll be one of the American judges, along with Judge Richard Sullivan of the SDNY (and one of CLR’s Board members) and Professor William Kelley of Notre Dame Law School.

The organizers of the competition have come up with an interesting new approach. Two noted scholars, Silvio Ferrari of the University of Milan and Brett Scharffs of BYU, will offer an overview of the issues for the audience, and then the student teams will argue the case before two moot courts, one simulating the American Supreme Court and the other simulating the European Court of Human Rights. (The European judges are Louis-Leon Christians of the Catholic University of Louvain, Mark Hill of Cardiff University, and Renata Uitz of Central European University Budapest.) On the final day of the competition, each court will render a judgment and announce the winning team.

The Marcianum”s approach to the competition highlights the fact that law and religion issues have gone international. And it introduces students, especially American students, to the comparative legal method. It should be a wonderful learning experience and a lot of fun, and I’m grateful to the organizers, especially Professor Andrea Pin of the University of Padua, for inviting me. Any of our readers at the competition, please stop by and say hello. I’ll try to blog from Venice if occasion allows. Not sure you can blog from a gondola, though.

Podcast on Oral Argument in EEOC v. Abercrombie & Fitch

In our latest podcast, Mark and I discuss last week’s Supreme Court oral argument in EEOC v. Abercrombie & Fitch Stores, Inc., the Title VII headscarf case. We analyze the legal issues, discuss implications for religious accommodations generally, and predict the outcome.

The Newest Doctor of the Church

gregory

This week, Pope Francis did something unprecedented. (One could perhaps write that sentence every week). He named, as a Doctor of the Universal Church, a tenth-century Armenian mystic called Gregory of Narek. Now, as the Catholic Church already recognizes 35 other Doctors of the Church, a designation that indicates saints who have made particular contributions to theological learning, you might wonder what’s so unprecedented about it. I’ll tell you.

(Readers who find theology, church history, and canon law boring should stop reading this post right now. You know who you are. We’ll get back to our regularly scheduled posting presently).

Gregory was a priest in the Armenian Apostolic Church. As a formal matter, the Armenian Church and the Roman Catholic Church have been out of communion since the fifth century. By the time Gregory was born, the two churches had already been divided for about 500 years. So Pope Francis has named, as a saint of particular theological distinction, someone from a separated church–someone who was not, in fact, a Catholic at all.

The churches separated over Christology. The Armenian Church declines to accept the Council of Chalcedon (451), which declares that Christ is one person with two separate, but conjoined, natures, human and divine, a position known as diophysitism. Like her sister Oriental Orthodox Churches, including the Coptic and Syriac churches, the Armenian Church holds instead that Christ has one combined human-divine nature, in which the human and divine nonetheless remain distinct, a position known as miaphysitism.

The disagreement does seem a rather technical one. Much turns on the proper fifth-century translation of Greek words like “physis” and “hypostasis.” For centuries, however, the two sides condemned each other as heretical. Chalcedonian Christians, including Catholics, Eastern Orthodox, and Protestants, dismissed Orientals as “monophysites.” That designation has been dropped in our lifetimes, though, both because it is incorrect (unlike miaphysitism, monophysitism is indeed a heresy, but not one Orientals espouse) and because it is rather insulting. Indeed, in 1996, Pope St. John Paul II signed a declaration with Catholicos Karekin I, the patriarch of the Armenian Church, that attributed the centuries of division to semantic and other misunderstandings and explained that, whatever the other differences, Christological controversies should no longer separate the two churches. In fact, current Catholic canon law allows Orientals to receive communion in a Catholic church.

Now, the Armenian Church–my own church, in case you are wondering–has long considered Gregory of Narek, who wrote a beautiful set of reflections called the Lamentations, a saint. Indeed, he’s a very prominent saint, whose prayers are included in our Lenten vigils. But he was not a Catholic. I imagine he himself would have been a bit surprised to find that Rome had declared him a Doctor of the Church, a saint whose theological writings bear special distinction. What’s the explanation?

As far as I can make out, it’s this. When Rome receives part of an Eastern church into full communion, it accepts all of the Eastern church’s saints, as long as they did not explicitly contradict Catholic doctrine. So, when part of the Armenian Church united with Rome in the 18th century to form the Armenian-rite Catholic Church, Rome accepted the Armenian saints, including Gregory of Narek. He was, as it were, grandfathered, and has been a Catholic saint ever since. That’s how, in light of his great contributions, he can be declared a Doctor of the Church today.

Pretty much everyone in the Catholic world seems happy, or at least not unhappy, about this turn of events (though not everybody), including the traditionalists at Rorate Coeli:

It is interesting to note that Gregory lived at a time when the Armenian Church, to which he belonged, was not formally in communion with Rome and Constantinople. However, as those interested in the extremely tangled history of Christianity in the first millennium are well aware, one cannot always speak straightforwardly of “schism” and “heresy” when dealing with the theological and ecclesiastical divisions of Christendom in that era.

Just so. Armenian Apostolic Christians, too, are genuinely pleased. Indeed, Pope Francis’s action is particularly welcome this year, the centennial of the Armenian Genocide of 1915, in which 600,000 to 1.5 million Armenians in Ottoman Turkey, including many Christian martyrs, lost their lives. The monastery of Narek on the shore of Lake Van, where Gregory once lived and taught, was itself a victim of the purge. The monks abandoned it during the genocide, a hundred years ago, never to return. Today, a mosque stands on the site.

St. John’s Hosts Panel on Mideast Christians

L-R: Michael LaCivita, Mark Wasef, MLM

This past Wednesday, the Center for Law and Religion co-sponsored a panel, “Threat to Justice: Middle Eastern Christians and the ISIS Crisis,” at the St. John’s Law School campus in Queens. The Catholic Law Students Association, and, especially, this year’s energetic president, Eugene Ubawike ’15, took the lead in organizing the event, which was also endorsed by the Law School’s Center for International and Comparative Law. I served as moderator.

Eugene introduced the panel by referring to the martyrdom of 21 Coptic Christians at the hands of ISIS operatives in Libya last weekend. The martyrdom of Christians is not something one reads about only in history books, he said–persecution is happening right now. In my introduction, I followed up on Eugene’s comments by reminding the audience of what Pope Francis said at our conference in Rome this past summer: there are more Christian martyrs today than in the first centuries of the Church, since before the time of Constantine, 1700 years ago.

Michael LaCivita, the Chief Communications Officer of the Catholic Near East Welfare Association, explained the mission of his organization and helpfully situated the discussion by giving a brief history of the Christians of the Middle East. Mark Wasef, an attorney and member of the board of United for a New Egypt, provided an overview of the situation Christians face in contemporary Egypt. He spoke movingly of the troubles Copts have faced in recent years, but also of the possibility of peaceful relations between Christians and Muslims, and his hopes for the future. A robust question and answer session touched on topics like the dhimma, the promise of the Sisi government in Egypt, Mideast Christians in American politics, and the legacy of the Crusades.

This is not the first panel on Mideast Christians that CLR has sponsored at the Law School, and, as at the event we sponsored in October 2010, turnout on Wednesday night was encouraging, a sign that the Law School community takes this issue seriously. Congratulations to Eugene and the Catholic Law Students Association for an important event in the life of St. John’s, and many thanks to our panelists.

Movsesian at Federal Bar Council

L-R: Noel Francisco, MLM, Judge Brian Cogan, David Schaefer

On Monday, I participated in a panel discussion, “The Evolution and Implications of the Religious Freedom Restoration Act,” at the Federal Bar Council’s annual Winter Bench & Bar Conference. (Honor compels me to reveal that the conference took place at the Casa de Campo resort in the Dominican Republic, where the February weather is much nicer than in Queens. But I returned to Queens right after my panel to teach my classes. The sacrifices scholars make). Founded in 1932, the Council is an organization of lawyers who practice in federal courts within the Second Circuit. The winter conference attracts not only lawyers, but also judges–Supreme Court Justice Samuel Alito is on the program this year–and discussions are substantive and enlightening.

My panel concerned a topic we’ve covered often here at the Forum, namely, religious accommodations under RFRA. I gave a twenty-minute overview of the topic, addressing the history of religious accommodations in American law, RFRA itself, the Court’s decisions last term in Hobby Lobby  and Wheaton College, and their immediate aftermath. Moderator Judge Brian Cogan (EDNY) then led the discussion, which included a mock argument on a hypothetical case involving the federal Family and Medical Leave Act–attorneys Steven Edwards (Hogan Lovells) and Steven Hyman (McLaughlin & Stern) took opposite sides–and interventions by Noel Francisco (Jones Day) and David Schaefer (Brenner Saltzman & Wallman). We wrapped up with audience Q&A.

I wasn’t the only member of the Center family to participate in the conference. Board member Mary Kay Vyskocil (Simpson Thacher) worked hard to coordinate the RFRA panel, though she unfortunately could not attend the conference, and Board member Judge Richard Sullivan (SDNY) will appear on a panel later this week.

Thanks to the Council for inviting me and to my fellow panelists for an engaging discussion!

 

People of the Cross

people-of-the-crossFrom Patheos:

 ISIS released its first video of mass beheadings last Saturday.

The victims of this murder were 21 Christian Egyptian men who ISIS marched onto a beach in Libya and then beheaded en masse. A CBS senior news analyst commented “They are targeting the people of the cross,” the Copts, which is an ancient Christian communion located mostly in Egypt. This isn’t much of an analytical leap, considering that ISIS named the video “A Message to the Nation of the Cross.”

France and Egypt have called for a meeting of the United Nations Security Council to deal with the “spiraling crisis of ISIS.” Meanwhile, Italy has closed its embassy in Lybia and also appealed to the United Nations as it attempts to deal with a huge influx of refugees who are fleeing Libya.

“This risk is imminent, we cannot wait any longer. Italy has national defense needs and cannot have a caliphate ruling across the shores from us,” Italian Defense Minister Roberta Pinotti told Il Messaggero newspaper. She added that the risks of Jihadists entering Italy along with the refugees “could not be ruled out.”

Italian Prime Minister Matteo Renzi, said, “We have told Europe and the international community that we have to stop sleeping. The problems cannot all be left to us because we are the first, the closest.”

Egypt’s government has responded to the video with bombings of ISIS locations inside Lybia. Egypt has also asked for American assistance in this war.

At an academic conference a couple of years ago, a prominent scholar with impeccably elite credentials scoffed when I referred to the worldwide persecution of Christians. “Next you’ll be telling us about the persecution of the one-billion-plus Chinese,” he said. I’m sure his opinion hasn’t changed.

 

Vaccination, the Nones, and Hobby Lobby

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Map from the New York Times

Measles is back. In recent weeks, an outbreak that originated in Southern California has spread across the nation (above). Public health officials seem confident the outbreak is explained, in large part, by the fact that significant numbers of parents no longer have their children vaccinated. These parents rely on exemptions that state laws, like California’s, provide for parents who object to mandatory vaccination programs. Perhaps surprisingly, the resistance is disproportionately high in wealthier, better educated, bluer neighborhoods, the sort of communities that pride themselves on their enlightened, progressive outlook.

The outbreak has obvious, unsettling public health implications. We are witnessing the recurrence of a serious, highly contagious disease we thought we had eradicated. In this post, though, I’d like to discuss some important cultural and legal implications. Culturally, the outbreak suggests the growing influence of the Nones—those Americans, maybe as many as 20% of us, without a formal religious affiliation. As I’ll explain, many of the parents who object to vaccination reflect the spirituality of the Nones. Legally, the outbreak seems likely to provide ammunition for opponents of last term’s decision in Hobby Lobby, the Contraception Mandate case. As I’ll explain, though, Hobby Lobby wouldn’t allow parents to claim religious exemptions in this context.

Let’s start with the cultural implications. To understand why the measles outbreak suggests the growing influence of the Nones, consider the reasons parents give for refusing to vaccinate their children. Some parents, it’s true, worry about the threat of toxins and an alleged link with autism. But the link with autism has been debunked; scientifically, there’s nothing to it. Some parents belong to religions that oppose vaccination. But the number of religions that forbid or even discourage vaccination is actually quite small. Conventional religious teachings cannot explain the widespread resistance we’re seeing, particularly in those blue, progressive neighborhoods.

Based on media accounts, much of the resistance comes from parents who object to vaccination, not because of science or conventional religion, but “personal belief.” Indeed, California law speaks in terms of a “personal belief exemption.” Many of the objectors have an intuitive conviction that vaccination is not right, natural, or wholesome. They associate it with capitalism and anti-environmentalism, which they see as morally deficient. Immunization makes these parents sincerely uncomfortable on a gut level. One told the New York Times, simply, “Vaccines don’t feel right for me and my family.”

Now, it’s impossible to hear these objections without thinking of the Nones. The Nones are a diverse group with varied commitments and philosophies. But sociologists have identified a common characteristic. Nones reject organized religion, not faith. In fact, they tend to be quite comfortable with spirituality, as long as it is personal and authentic: they are the “Spiritual but Not Religious.” So when a parent says vaccination seems wrong to her on a visceral level, and that she therefore refuses to allow her children to go through the procedure, she is reflecting the spirituality of the Nones. Of course, I don’t claim that all Nones reject vaccination, or even that all the parents who object to vaccination are Nones. But the Nones’ worldview pretty clearly provides the anti-vaccination movement with much of its considerable force.

Next, the legal implications. It seems to me very likely that opponents will use the outbreak to attack the Court’s decision last term in Hobby Lobby, the Contraception Mandate case. In fact, in her Hobby Lobby dissent, Justice Ginsburg argued that that, under the Court’s reading of RFRA, employers with religious objections could refuse to cover vaccinations for employees. This argument is a bit ironic, since, as I say, most religions don’t object to vaccinations. But some religions do object, and anyway, under Supreme Court precedent, the personal, anti-vaccination beliefs of Nones could be treated, for legal purposes, like traditional religious convictions. So Justice Ginsburg’s argument has a surface plausibility.

The Hobby Lobby Court expressly declined to address the implications of its holding for vaccination requirements. But Justice Ginsburg’s argument is misleading. Under RFRA, the government must offer an accommodation where a less restrictive alternative exists, that is, one that would allow the government to fulfill its compelling interest without substantially burdening the claimant’s exercise of religion. In Hobby Lobby, an alternative did exist. The government could have allowed the employer to opt out of coverage and have the plan administrator itself pay for the contraception. A similar accommodation could be worked out for vaccinations. If an employer didn’t want to pay, the plan administrator could be required to do so.

But here’s the important point: the vaccinations would take place. Hobby Lobby would not allow parents with religious objections to refuse to have their kids vaccinated at all. This is because there is no less-restrictive alternative to a mandatory vaccination protocol. For vaccination to work in preventing the spread of serious disease –surely a compelling government interest—more than 90% of a population must be vaccinated. (Scientists refer to this as the percentage necessary to create “herd immunity”). If the government allowed exemptions for people with religious objections, the percentage of vaccinated children could quickly fall below this number, endangering the whole population. In one California location, for example, the Times reports that exemptions have allowed 40% of schoolchildren to skip their measles vaccination.

Now, there is a complication. All states allow parents to claim exemptions from mandatory vaccination requirements for medical reasons. In some very rare cases, vaccination can endanger the health of a child, and in those circumstances, parents can decline to have their child vaccinated. Well, you might ask, doesn’t the possibility of medical exemptions suggest that the government doesn’t have a compelling interest in vaccinating absolutely everybody? And doesn’t that mean the government must also allow religious exemptions?

Maybe—some lower court caselaw does suggest that outcome. But I doubt it. No medical protocol is ever completely categorical; we don’t insist that doctors carry out a course of treatment even if it’s not medically indicated. It’s hard to imagine the Supreme Court would hold that allowing any medical exemption at all would necessarily require an exemption for religious reasons. It wouldn’t make sense.

Anyway, an outbreak of the sort we’re experiencing now is not an inevitable consequence of Hobby Lobby. It’s worth keeping that in mind in the weeks ahead.

In Turkey, the Clash of Civilizations Continues

In academic and policymaking circles in the West, one hears a great deal about universal human rights. These rights, it is said, apply to everyone, everywhere; they are inherent in human nature. It’s an interesting idea. The problem is, not everyone agrees. That’s putting it mildly. Whole civilizations reject the Western conception of universal human rights, including, principally, freedom of expression and freedom of religion. We can tell ourselves that the conflict is temporary and superficial, that other civilizations are moving inexorably toward our understanding. We have international agreements! But much suggests the clash is profound and perduring.

Events in Turkey over the past weekend provide more evidence. On Saturday, 100,000 people gathered in the city of Diyarbakir to protest the publication of cartoons of the Prophet Muhammad in the French journal, Charlie Hebdo. One hundred thousand people – that’s hardly a fringe phenomenon. According to an account in a Turkish newspaper, speakers condemned the notion that freedom of expression extended to insults against the Prophet. Protesters held up placards with phrases such as “‘Damn those saying “I am Charlie,” and ‘May Charlie’s Devils not defame the Prophet.’”

These sentiments are not limited to the reaches of Anatolia. Prime Minister Ahmet Davutoğlu personally expressed his support for the protesters. At a meeting of the ruling AKP party in Diyarbakir, he sent greetings to the protesters, to “each and every brother who defends the Prophet Muhammad here.” (Ironically, Davutoğlu represented Turkey at the solidarity rally in Paris the weekend after the Charlie Hebdo attacks).  And, on Sunday, a court in Ankara ordered Facebook to block users’ access to pages containing content deemed insulting to the Prophet. According to the New York Times, Facebook immediately complied.

Of course, not everyone in Turkey endorses these actions, but that’s not the point. Throughout the country, and in many other places across the globe, millions disagree, profoundly, with how the West understands things. They are not about to change their minds. We need to pay attention. The clash of civilizations continues.